Amazon Data Services and King George County officials remain at odds.
Amazon recently filed a petition in King George County Circuit Court requesting a review of the Board of Zoning Appeals’ March 25 decision to deny the company’s request for a determination of vested rights of 869 acres it owns in the county for the purpose of constructing a data center campus.
Vested rights are legal rights or entitlements that are unconditionally secured and cannot be taken away without due process or the holder’s consent.
Amazon requested a zoning determination from Angela Foroughi on May 8, 2024, when she was serving as the county’s acting zoning administrator. County Administrator Matthew Smolnik’s hiring was effective June 1, and he took over the responsibility of zoning administrator.
The board of supervisors discussed downzoning Amazon’s land from industrial back to agricultural in April 2024. Amazon’s attorneys called the potential downzoning “an act that would block the project and wipe out Amazon’s reasonable investment-backed expectations in the use of the property.”
“The vested rights doctrine exists to protect property owners against precisely this type of capricious government action,” the petition states.
Amazon requested the zoning determination from Foroughi (and Smolnik) after hearing the supervisors discuss downzoning.
Hirschler Fleischer Attorney Charlie Payne, who represents Amazon, argued that Smolnik’s response to the zoning determination was untimely since it occurred two days outside of the 90-day timeframe required by state law, and “unresponsive” because he failed to make a ruling on Amazon’s vested rights in the property, but had the legal authority to do so.
Smolnik stated in his response to Payne that “it is outside of my legal responsibilities to provide you my opinion on your questions outlined in your May 8, 2024 letter.” Payne went on to argue that Virginia code allows zoning administrators to make “findings of fact, with concurrence of the attorney for the governing body and conclusions of law regarding determinations of rights.”
“There is simply no question that the zoning administrator has authority to make determinations regarding vested rights,” Payne wrote.
However, the Board of Zoning Appeals unanimously supported Smolnik’s decision in March, which spurred Amazon to file a petition in circuit court on April 24.
“I believe there’s enough … space between May 8 and Aug. 6 or Aug. 8 to determine that a two-day floatation still results in my view or perspective that [Smolnik] was timely,” BZA Chair Tony Scaramozzi said during the March meeting. “He’s not working the weekends. The clock says 90 days, but that’s not workdays for him.”
King George Interim County Attorney Richard Stuart said he’s not debating that Smolnik’s decision came after the 90-day window, but he questioned if two days make a substantial difference.
The King George Board of Supervisors and Birchwood Power Partners were both served with the petition, since the case stems from the supervisors requesting the renegotiation of a performance agreement signed by a previous board in late 2023 to permit Amazon to construct the data center campus. Amazon, which stated in the petition that it is not alleging any wrongdoing by Birchwood but named it as a cautionary measure, will not renegotiate the performance agreement until the supervisors agree that it is valid.
Amazon’s attorneys argue that because the board approved the rezoning from agricultural to industrial, accepted amended proffers, passed a special exception amendment and adjusted the county’s comprehensive plan to support the project, it spent $168.8 million to purchase the property from Birchwood. It also paid $6 million in other development efforts and used countless employee hours to attend meetings with county officials in preparation for breaking ground on the project.
“It is difficult to imagine a more clear-cut case of vested rights — vested rights that the board cannot now unwind by downzoning the property back to agriculture,” Payne wrote in his conclusion. “Accordingly, we are seeking a determination that Amazon has vested rights in the rezoning, proffer amendment, the SPEX amendment and the Comprehensive Plan amendment.”
In its preliminary statement, Amazon noted that it finalized the performance agreement with the board of supervisors the same day it purchased the nine rezoned parcels. The performance agreement, which was slated to run through 2051, stated Amazon’s intention to invest at least $6 billion in the county, including more than $330 million in infrastructure costs. The agreement also included a commitment to negotiate a water services agreement with the county, through which the company would provide at least 600,000 gallons of raw surface water per day to the county at no charge.
“Following an election and a change in its political leadership, the county reversed course,” Amazon’s attorneys stated.
Amazon’s petition to the court declares that the zoning administrator and the board of zoning appeals both erred. The board of supervisors will discuss the lawsuit in closed session on Tuesday. A court date has not been set.
“The zoning administrator shirked his clear authority and obligation to issue relevant findings of fact,” the petition states. “His non-decision also failed to identify any pertinent legal conclusion that he believed was necessary to determine Amazon’s vested rights that the county attorney blocked him from rendering. Nor is there any valid reason for the zoning administrator’s untimely response. In view of this, the court should vacate the zoning administrator’s untimely, erroneous determination.”
Disclaimer: Hirschler Fleischer, an individual or organization central to this story, is a major donor to the Free Press. Donors do not influence newsroom operations.
